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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Victoria MENDEZ, Defendant and Appellant.

No. B066139.

Decided: July 13, 1993

Bonnie Stern Wasser, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., Mitchell Keiter, Deputy Atty. Gen., for plaintiff and respondent.

Defendant, Victoria Mendez, appeals from the judgment entered following a jury trial that resulted in her conviction of possessing phencyclidine (Health & Saf.Code, § 11377, subd. (a)), being under the influence of the same controlled substance (Health & Saf.Code, § 11550, subd. (a)) and driving under the influence of drugs.  (Veh.Code, § 23152, subd. (a).)  She was committed to prison for two years;  a concurrent term was imposed for one of the misdemeanors;  and as to count 2, being under the influence of phencyclidine (Health & Saf.Code, § 11550, subd. (a)), the sentence was stayed pursuant to Penal Code section 654.1  We appointed counsel to represent her on this appeal.   After examination of the record, appointed appellate counsel filed a brief that raised no issues which could be presented on behalf of defendant.   The brief was filed in full compliance with the Supreme Court's decision of People v. Wende (1979) 25 Cal.3d 436, 440, 158 Cal.Rptr. 839, 600 P.2d 1071.   On January 28, 1993, we advised defendant that she had 30 days within which to personally submit any contentions or issues which she wished us to consider in terms of why she was entitled to reversal or other modification of the judgment.   No response has been received to date.   We have examined the entire record and are satisfied that defendant's attorney has fully complied with her responsibilities.   No arguable issues exist which can be presented on behalf of defendant.  (People v. Coleman (1991) 53 Cal.3d 949, 952–954, 281 Cal.Rptr. 146, 809 P.2d 921.)

 During our independent review of the record, we noted there was a potential jurisdictional error concerning the application of section 654.   Based upon our analysis of the transcripts, it appeared to us that the order staying the misdemeanor sentence for being under the influence of phencyclidine in violation of Health and Safety Code section 11550, subdivision (a) as to count 2 could be violative of the decisional authority interpreting section 654.   When the parties fail to appropriately discuss the applicability of section 654 to a sentence, we are obligated to raise the issue on our own motion.  (People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3, 153 Cal.Rptr. 40, 591 P.2d 63;  People v. Miller (1977) 18 Cal.3d 873, 887, 135 Cal.Rptr. 654, 558 P.2d 552;  People v. Thompson (1989) 209 Cal.App.3d 1075, 1078, fn. 1, 257 Cal.Rptr. 658.)   We advised the parties of this potential issue.   Defense counsel has fully briefed the issue.   We received a brief letter from respondent indicating that section 654 barred the imposition of sentence for both driving under the influence of a drug (Veh.Code, § 23152, subd. (a)) and being under the influence of a controlled substance.  (Health & Saf.Code, § 11550, subd. (a).)  We respectfully conclude that neither the Attorney General nor defendant are correct and reverse the order staying the misdemeanor sentence under count 2 pursuant to section 654.   We remand for resentencing to allow the trial judge to exercise his discretion in determining whether to order the misdemeanor sentence to run consecutively or concurrently with the state prison commitment.

Los Angeles County Deputy Sheriff Edward Estrada testified that on March 15, 1991, at about 7:30 p.m., he was riding in a marked patrol car in East Los Angeles with his partner Deputy Michael Duncan.   After they observed erratic driving and several Vehicle Code violations on defendant's part, the deputies activated the red lights on their patrol car.   As Deputy Estrada walked up to the passenger side of the Honda, he saw defendant hand “a dark colored object” to her passenger, Richard Morena, who in turn “tossed ․ [the] dark colored vial into the glove compartment.”   The vial was later determined to contain phencyclidine.   As the deputies were approaching the car, Mr. Morena saw Deputy Estrada and articulated a vulgar epithet.

Deputy Duncan approached on the driver's side of defendant's Honda.   Deputy Duncan could smell the odor of phencyclidine from inside the car as well as on her “breath and person.”   Defendant looked at Deputy Duncan with “a kind of a blank stare on her face” and her speech was “repetitive.”   Defendant's pulse was elevated, her eyes displayed vertical and horizontal gaze nystagmus, both of which were consistent with phencyclidine intoxication, and she became more argumentative as the detention progressed.   Defendant began to state:  “ ‘You can't do this.   I work for the public defenders office.   You can't do this.’ ”   At the sheriff's station, she refused to provide a urine test.   She signed a statement which said, “ ‘I understand that if I refuse to submit a urine test at this time, my refusal will be used against me in a court of law showing a consciousness of guilt by me.’ ”   In the right front pocket of her jacket, Deputy Duncan discovered four “Kool cigarettes” which were “commonly used to be dipped in liquid PCP and then smoked.”   An odor of phencyclidine emanated from the right side of her jacket where the four “Kool” cigarettes were found but not from the other side of the article of clothing.   A chemist analyzed the four cigarettes.   She testified, “I randomly analyzed one, and found that it did not contain PCP.”   The chemist did not observe any stains or “anything like that on the cigarettes.”

Defendant was convicted in 1986 of possession of phencyclidine for purposes of sale (Health & Saf.Code, § 11379.5, subd. (a)), twice in 1987 of being under the influence of the same drug (Health & Saf.Code, § 11550, subd. (a)), and once in 1987 of possession of PCP.  (Health & Saf.Code, § 11377, subd. (a).)  The probation officer interviewed defendant.   The substance of that interview was reflected in the probation officer's report as follows:  “Defendant has declined to submit a written statement.   Orally, defendant denies involvement in the present offense stating that the PCP did not belong to her and she denies she was under the influence of PCP when arrested.   Defendant further states she plans to appeal the case stating that she was not properly represented.   She states, however, if granted probation, she thinks she can successfully complete same.”   The personal history portion of the probation officer's report stated:  “Defendant denies current drug use.   However, defendant admits to prior use of phencyclidine (PCP) but denies any use since 1986.   Defendant also states she has been involved in a prior substance abuse program, name unknown, where she was involved for six months.”   In evaluating defendant's conduct and record, the probation officer stated:  “In review of defendant's criminal record, the present [offense] constitutes defendant's fifth known conviction involving controlled substance, phencyclidine, in the community.   It is noted defendant has had the benefit of prior probation intervention yet, judging by defendant's involvement in the instant matter, defendant has made it apparent she is either unwilling or unmotivated to change her behavior.   Moreover, defendant's denial of complicity in the present offense, despite the jury's finding and available evidence, would appear to suggest that defendant is unwilling to accept responsibility for her conduct.  [¶] Considering the above, it is felt defendant has been alerted with regards to the dangers and consequences of her involvement with PCP in the community.   On this basis, defendant's behavior is viewed as unsuitable for a community-based program, and at this juncture a commitment on the state level appears warranted.”   The trial court sentenced defendant to prison for phencyclidine possession, imposed a concurrent 182–day sentence for driving under the influence of a drug but stayed the 90–day sentence for being under the influence of a controlled substance pursuant to section 654.

 We conclude the trial court lacked the jurisdiction to utilize section 654 to stay the under the influence of phencyclidine sentence as to count 2.   The misapplication of section 654 is a sentencing error which is not subject to the objection requirement in the trial court before such an issue can be raised on appeal.  (People v. Perez, supra, 23 Cal.3d at p. 550, fn. 3, 153 Cal.Rptr. 40, 591 P.2d 63;  People v. Thompson, supra, 209 Cal.App.3d at p. 1078, fn. 1, 257 Cal.Rptr. 658.)   Further, an improper order staying a sentence pursuant to section 654 is a jurisdictional error which may be corrected even in the context of a defendant's appeal.  (In re Ricky H. (1981) 30 Cal.3d 176, 191, 178 Cal.Rptr. 324, 636 P.2d 13 [juvenile court's improper fixing of a period of incarceration at three years may be corrected to require a four year term];  People v. Serrato (1973) 9 Cal.3d 753, 763, 109 Cal.Rptr. 65, 512 P.2d 289, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144 [appellate court can correct an unauthorized sentence even if defendant receives a harsher sentence upon remand];  People v. Price (1986) 184 Cal.App.3d 1405, 1411–1412, 229 Cal.Rptr. 550 [improper section 654 stay may be corrected on defendant's appeal;  accord, People v. Brown (1987) 193 Cal.App.3d 957, 962, 238 Cal.Rptr. 697.)   Appellate courts have a duty to correct section 654 jurisdictional errors (People v. Johnson (1970) 5 Cal.App.3d 844, 847, 85 Cal.Rptr. 238) even if the parties do not raise the issue.  (People v. Perez, supra, 23 Cal.3d at p. 550, fn. 3, 153 Cal.Rptr. 40, 591 P.2d 63.)   Appellate courts have, in situations where defendants have appealed, remanded for resentencing in cases where a trial court judge has improperly stayed a sentence pursuant to section 654.  (People v. Baylor (1989) 207 Cal.App.3d 232, 235–236, 255 Cal.Rptr. 172 [trial court incorrectly relied upon section 654 to stay sentences for separate sexual assault, burglary, and robbery];  People v. Glaude (1983) 141 Cal.App.3d 633, 643, 190 Cal.Rptr. 479 [trial court erroneously stayed robbery sentence pursuant to section 654 where there were multiple victims of defendant's violent conduct].)

The proper standard of appellate review of section 654 issues was described by our Supreme Court in People v. Coleman (1989) 48 Cal.3d 112, 162, 255 Cal.Rptr. 813, 768 P.2d 32 as follows:  “ ‘Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct.  [Citation.]’  [Citation.]  ‘The proscription against double punishment in section 654 is applicable where there is a course of conduct which ․ comprises an indivisible transaction punishable under more than one statute․  The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’  [Citation.]  ‘The defendant's intent and objective are factual questions for the trial court;  [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he [or she] was sentenced.   [Citation.]’  [Citation.]”   However, there are certain cases where a determination may be made, as a matter of law, as to the applicability of section 654.  (People v. Perez, supra, 23 Cal.3d at p. 552, fn. 5, 153 Cal.Rptr. 40, 591 P.2d 63.)   There was no dispute as to the facts in the present case.   Defendant did not testify nor did her passenger, Mr. Morena.   Moreover, there was no dispute as to the factual matters related in the probation officer's report.

 We determine, as a matter of law, defendant could not receive the benefit of section 654.   First, section 654 could not act to bar multiple sentencing for being under the influence of phencyclidine and possessing the vial containing the drug.   The uncontroverted evidence indicated that the vial had been in the right front pocket of her jacket with the four “Kool” cigarettes.   Quite obviously, the purpose of the four cigarettes was so they could be used in the future.   Moreover, when the deputies approached, defendant removed the vial and handed it to Mr. Morena in an effort to conceal it.   There was no dispute as to these facts.

There are two relevant cases on this subject.   In the first, People v. Holly (1976) 62 Cal.App.3d 797, 804–807, 133 Cal.Rptr. 331, a divided court held that section 654 could bar sentencing for both being under the influence of heroin and possessing heroin.   In Holly, the defendant had been arrested in his own home with 2.12 grams of heroin in his pockets.   (Id. at pp. 803, 805, 133 Cal.Rptr. 331.)   The trial court had determined, based on the evidence before it, that the defendant was addicted to and a heavy user of heroin who could consume the 2.12 grams “in a relatively short time․”  (Id. at p. 805, 133 Cal.Rptr. 331.)   The Court of Appeal stated:  “These factual determinations support the conclusion that the heroin found in defendant's pocket was possessed only for his own consumption and its use was necessary to satisfy his addiction and to his objective of being under the influence of heroin, and that defendant's possession of the heroin was incident to his objective of being under the influence;  and the acts of which defendant was convicted constituted an indivisible course of conduct.   Obviously for the purpose of section 654, as well as for a determination of guilt or innocence on count I, the trial court rejected any opinion evidence that the heroin was possessed for sale or transfer.”  (Id. at p. 805, 133 Cal.Rptr. 331, fn. omitted.)   The Court of Appeal in Holly noted that the trial court had rejected the theory that the heroin found in the defendant's possession had been possessed for sale or transfer and concluded:  “Defendant's possession of heroin was simultaneous with his condition of being under the influence of heroin, and although we do not dispute that were 2.12 grams injected at one time, in all probability the result would be deadly, we do not read the cases as requiring a showing that under the circumstances here defendant must be able to immediately consume all of the narcotic before the court can find that the possession and his use and being under the influence constitute an indivisible course of conduct.”  (Id. at pp. 805–806, 133 Cal.Rptr. 331;  original italics;  fn. omitted.)

However, the Holly opinion was distinguished by the Court of Appeal in People v. Maese (1980) 105 Cal.App.3d 710, 726–728, 164 Cal.Rptr. 485.   In Maese, the defendant was sentenced to state prison for possession of heroin and also for being under the influence of heroin.   In Maese, the Court of Appeal held that the amount of heroin was such that it would have taken a substantial period of time to use it all.   Therefore, because the defendant “was not possessing the heroin for use within a ‘relatively short time’ ” and “the objectives are legally as well as factually divisible, [defendant] may be punished for both possession of heroin and being under the influence of heroin.”  (Id. at p. 728, 164 Cal.Rptr. 485.)   In comparing Holly and Maese, it bears emphasis that the California Supreme Court has repeatedly stated that in construing section 654, “[e]ach case must be determined on the basis of its own facts, and general principles applicable to one type of case may not apply to another.”  (In re Adams (1975) 14 Cal.3d 629, 633, 122 Cal.Rptr. 73, 536 P.2d 473.)

In the present case, given the uncontradicted nature of the testimony, we determine, as a matter of law, section 654 could not bar sentencing for both possession of the phencyclidine and the separate act of being under the influence.   The crucial issue in section 654 litigation is the “ ‘defendant's intent and objective․’ ”  (People v. Coleman, supra, 48 Cal.3d at p. 162, 255 Cal.Rptr. 813, 768 P.2d 32.)   There was absolutely no evidence that defendant intended to utilize the phencyclidine which had been in her jacket pocket to maintain her then current state of intoxication which was interrupted by her arrest.   Stated differently, there was no testimony that it was her intention to continue to use the contraband without interruption.   Further, since four cigarettes were found in her pocket where the phencyclidine had been, this demonstrated an intent to use the drug in the future.   Moreover, the present court has before it the fact she took the contraband out of her pocket and quickly handed it to her passenger, Mr. Morena, so that he could conceal it from the sheriff's deputies.   This separate intent and objective is an undisputed fact.   Although we are more persuaded by the analysis in Maese than in Holly, we need not criticize or adopt either decision.   This case contained undisputed evidence of an intent to use the drug in the future plus a separate objective to conceal it from Deputies Estrada and Duncan in addition to an absence of any testimony which would support an inference that the phencyclidine was possessed pursuant to a single purpose.   Under these unique circumstances, section 654 was inapplicable to the under the influence charge and the possession count.

 Second, likewise, section 654 does not bar multiple sentencing for being under the influence and driving under the influence.   The only case to directly address this issue was a decision of the Appellate Department of the Los Angeles Superior Court.   The facts in People v. Davalos (1987) 192 Cal.App.3d Supp. 10, 13–14, 238 Cal.Rptr. 50, were exactly the same as in the present matter.   Judge Abby Sovin held:  “Although defendant contends that an indivisible course of conduct was involved, he is unable to isolate the single criminal objective essential to defendant's analysis.  [Citation.]  He does not contend that he ingested PCP with the objective of driving under the influence or that he drove with the objective of being under the influence of PCP.   He cannot isolate a victim, because no identifiable victim is involved in either a violation of section 23152, subdivision (a) or section 11[5]50, subdivision (b).  [Citations.]  [¶] The purpose of section 654, as noted, is to insure that the punishment is commensurate with the crime.  [Citations.]  The Legislature would have been entitled to require cumulative punishment for the violations of sections 23152 and 11550.  [Citation.]  The legislative scheme suggests that the Legislature doubtless knew that when Penal Code section 654 does apply, the proper procedure is to stay execution of the sentence imposed for the lesser offense.  [Citation.]  [¶] Here, we have no clearly discernable lesser offense.   Rather, we have offenses with different punishment options.  Section 11550 is punishable by a maximum sentence of one year in county jail, while section 23152[ ] is punishable by a maximum sentence of six months or one year in county jail, depending upon the defendant's prior convictions.  [Citations.]  Section 11550 imposes a mandatory jail term of 90 days ․, when the minimum mandatory jail sentence for a violation of section 23152 depends upon prior convictions, ranging from no minimum [citation] to 180 days mandatory jail time [citations][.]  No fine may be imposed in connection with a violation of section 11550 while a violation of section 23152 may involve a mandatory minimum fine and a maximum fine of $1000 [citation].   Moreover, section 23152 convictions may involve license suspension or revocation [citation] and vehicle impoundment [citation].   In summary, the fact that it is not clear which is the ‘lesser offense,’ and therefore not clear which sentence should be stayed supports the conclusion that the offenses should be viewed as separate offenses, both punishable under section 654.  [¶] Finally, an examination of the purposes for the enactment of section 11550 and section 23152 shows that the goals of each differ, and that punishment for only one offense may not satisfy these goals.   The object of section 11550, which prohibits using or being under the influence of a controlled substance, is to protect the individual by proscribing the use which ․ may be an activating part of the process of drug abuse or addiction.  [Citation.]  The object of section 23152 is to protect members of the public who use the highways from those who have impaired their ability to drive as the result of substance use.  [Citation.]  [¶] We agree with the trial court's conclusion that defendant committed two separate and separately punishable offenses.   When defendant ingested the PCP, he was in violation of section 11550 prohibiting the use of a controlled substance.   Once he was under the influence of the PCP, as defined by the Vehicle Code, and proceeded to drive his car, he committed an additional separate and distinct offense for which he was subject to further punishment.   The trial court did not err in sentencing defendant for each offense.”  (Id. at pp. 13–14, 238 Cal.Rptr. 50.)

Davalos stands for the proposition that driving under the influence and being under the influence are two separate and distinct acts.   In the present case, defendant failed to present any evidence which indicated that being and driving under the influence could be the basis of a single intent and objective.   Furthermore, we cannot under the facts of this case determine how it would be possible for defendant to have entertained a single intent and objective by being under the influence while operating a motor vehicle at the same time.   They are distinctly separate acts.   Moreover, this was defendant's fifth phencyclidine-related conviction.   She was hopelessly addicted to the drug.   Her use was the result of her addiction—something entirely unrelated to the act of driving.   Despite the opportunity to present evidence of a single intent or objective, defendant failed to do so.2

This case is unlike that of People v. Duarte (1984) 161 Cal.App.3d 438, 445–447, 207 Cal.Rptr. 615, where a defendant was convicted of both driving under the influence of alcohol and having more than .10 percent of alcohol in his blood.   The Court of Appeal quite correctly held that section 654 “required the sentencing judge to select between two offenses [in Vehicle Code section 23152, subdivisions (a) and (b) ]” carrying the same penal term.  (Id. at p. 447, 207 Cal.Rptr. 615.)   There was no evidence in the case before us that defendant's driving had anything to do with her being under the influence of phencyclidine.   There was no substantial evidence to support the implied finding by the trier of fact that there was a single objective;  as a result, the order staying the sentence as to count 2 pursuant to section 654 must be reversed.   Accordingly, the case must be remanded for resentencing so that the court may exercise its discretion and determine whether to impose a consecutive or concurrent sentence.

The judgment of conviction as to all counts is affirmed as are the sentences as to counts 1 and 3.   That part of the sentence as to count 2 staying the 90–day sentence is reversed and remanded to the superior court.   The court is to determine whether to impose a consecutive or concurrent 90–day county jail sentence for that count.


1.   All future statutory references are to the Penal Code unless otherwise indicated.

2.   The People argue section 654 precludes multiple sentencing and offer the following analysis:  “Unlike the case of People v. Davalos (1987) 192 Cal.App.3d Supp. 10, 238 Cal.Rptr. 50, the instant case presents no evidence that appellant's being under the influence and driving under the influence were committed consecutively, giving rise to the inference of separate intents.   Accordingly, respondent concedes the propriety of the section 654 stay.”   To begin with, there was no evidence in Davalos that the crime of driving under the influence of a drug occurred at a different time than the act of being under the influence.   The whole point of Judge Sovin's analysis was that when a person is convicted of violating both Vehicle Code section 23152, subdivision (a) and Health and Safety Code section 11550, multiple sentencing is appropriate.   Contrary to the implication of respondent's argument, Davalos does not involve a defendant who drove under the influence at one time and later was found to be under the influence while not operating a motor vehicle.   Further, as noted in the body of this opinion, the crux of any section 654 question is the presence of a separate intent and objective.   Driving involves a distinctly different objective than using phencyclidine as part of an established pattern of addiction.   One drives a car to go somewhere;  the addicted smoke cigarettes laced with phencyclidine for entirely different reasons.   The fact that in the present case the separate intents and objectives were pursued simultaneously did not constitute substantial evidence sufficient to support the trial court's section 654 stay.

TURNER, Presiding Justice.

ARMSTRONG and PEREZ, JJ., concur.